Thomas Potter, III

Thomas Potter, III

Burr & Forman

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SEC Approves Proposed Rules for Executive Compensation

On April 29, 2015, the Securities and Exchange Commission (SEC) narrowly approved proposed rules requiring certain reporting companies to disclose the relationship between pay to named executive officers and performance by...more

5/21/2015 - Disclosure Requirements Executive Compensation Pay-for-Performance Proposed Regulation SEC Total Shareholder Return (TSR)

Delaware Supremes Give Independent Directors a Way Out

In an opinion Thursday, the Delaware Supreme Court held that independent directors should be dismissed from shareholder derivative litigation – even over transactions presumptively subject to “entire fairness” review – unless...more

5/19/2015 - DE Supreme Court Exculpatory Clauses Fairness Standard Independent Boards

FINRA Revises Sanction Guidelines

The Financial Industry Regulatory Authority’s disciplinary appellate body (the National Adjudicatory Council or NAC) has revised the Sanction Guidelines used to determine penalties in enforcement cases. The revisions increase...more

5/15/2015 - Consumer Price Index Enforcement Actions FINRA Sanctions

SEC Confirms “Looking Glass” Fears About Administrative Forum

The SEC confirmed Friday that it may choose to be prosecutor, judge and jury in novel cases where it thinks it knows best and can urge Chevron deference when others seek judicial review....more

5/12/2015 - Administrative Authority Chevron Deference Judicial Review SEC

SEC Awards ~$1.5M to Whistleblowing Compliance Officer

Earlier this week, the SEC approved a whistleblower award of between $1.4-1.6 million to a compliance officer. Ordinarily, the Commission will not consider information to be “derived from [a whistleblower’s] independent...more

4/28/2015 - Chief Compliance Officers SEC Whistleblower Awards Whistleblowers

MSRB Releases Content Outline for Municipal Advisor Exam

The MSRB recently released a content outline for the new Series 50 Municipal Advisor Representative examination, which the SEC approved in principle earlier this year. See MSRB Reg. Notice 2015-06. The MSRB filed the Rule...more

4/27/2015 - Examination Manual MSRB Municipal Advisers

Aging Boomers, Low Yields Lead Regulators to Warn on Complex Products

The “boomer bulge” in the US aging demographic, combined with a persistent low-interest-rate environment, leads regulators to renew their warnings about retail sales of complex investment products to older investors....more

4/23/2015 - Baby Boomers Complex Financial Products Interest Rates SEC

MSRB Files Proposed Municipal-Advisor Conduct Rule with SEC

The MSRB filed its Municipal-Advisor conduct rule proposal with the SEC on April 15. The Rule G-42 proposal has been around the block twice, since the Board first floated it in January last year (Reg. Notice 2014-01). The...more

4/20/2015 - Duty of Care Fiduciary Duty MSRB Municipal Advisers Proposed Regulation

ECF Fail: You Have to Read the Order

We’ve all done it: Read the docket description in the notice of electronic filing (“NEF”) and have your paralegal download the order and add it to the pleadings file. But you have to read the order: The clerk’s...more

4/16/2015 - Confidential Documents Electronic Filing JMOL Patent Litigation Right To Appeal

SEC Files 1st Action Over Anti-Whistleblower Confidentiality Clause

Not April Fool’s for one public-company registrant, as the SEC filed its first settled action today over corporate confidentiality provisions that run afoul of Dodd-Frank whistleblower protections. The clause in question was...more

4/2/2015 - Confidentiality Agreements Corporate Fines Dodd-Frank DOJ Enforcement Actions SEC Whistleblower Protection Policies

White Calls for SEC to Adopt Uniform Fiduciary Standard

SEC Chair Mary Jo White said Tuesday that the SEC needs to move forward on a uniform fiduciary standard for the financial industry, including brokers. Addressing the annual meeting of the Securities Industry and Financial...more

3/19/2015 - Broker-Dealer Brokers Fiduciary Duty Financial Institutions Mary Jo White SEC

SDNY US Attorney Preaches to Choir; Lauds Financial-Industry Gatekeepers

Addressing the annual meeting of the Compliance & Legal Division of the Securities Industry and Financial Markets Association, Manhattan U.S. Attorney Preet Bharara stressed the importance of industry compliance and legal...more

3/17/2015 - Chief Compliance Officers Compliance Corporate Counsel Deferred Prosecution Agreements Dodd-Frank

SEC Sweep on NDAs Restricting Whistleblowers

The Wall Street Journal reported Thursday that the SEC is in the midst of a sweep to crack down on companies’ use of NDAs or employment agreements that might impede whistleblower reporting in violation of Dodd-Frank...more

3/3/2015 - Confidentiality Agreements Dodd-Frank Non-Disclosure Agreement SEC Strategic Enforcement Plan Whistleblower Protection Policies Whistleblowers

“No News Is Bad News” on BSA Compliance

Addressing SIFMA’s Anti-Money Laundering (“AML”) conference Wednesday, SEC Enforcement Director Andrew Ceresney said that – when it comes to AML – the lack of red flags itself is a red flag....more

3/2/2015 - Anti-Money Laundering Bank Secrecy Act Enforcement Actions SAR SEC SIFMA

Banking & Financial Services E-Note - February 2015

In This Issue - - Coquina Investments v. TD Bank: Examining a Non-Party’s Invocation of the Fifth Amendment - SideBAR - Dodd-Frank Act Update Financial Fraud Law Report - Post-Crawford FDCPA Claim...more

3/2/2015 - Banking Sector Banks Dodd-Frank FDCPA Fifth Amendment Financial Institutions

High Court Divided: Is A Fish A Tangible Object?

Gulf fisherman John Yates was cited by a federally-deputized Florida Fish & Wildlife officer for having caught a few red grouper that were about an inch under the 20” minimum limit at the time (they’d have been legal under...more

2/27/2015 - Destruction of Evidence Evidence Sarbanes-Oxley SCOTUS US v Yates

Commissioner Piwowar on SEC & Fairness: Physician Heal Thyself?

In an address Friday at the 44th annual “SEC Speaks” conference, SEC Commissioner Michael Piwowar suggested that the Securities Exchange Commission might do well to apply its own rules to itself. He suggested the Commission...more

2/24/2015 - Administrative Hearings Enforcement Actions Market Participants SEC

SEC Seeks Chevron Deference to Unnecessary Ruling that Dodd-Frank 180-Day Enforcement Directive Doesn’t Matter

In a brief filed last week, the SEC urged the D.C. Circuit to give Chevron deference to the Commission’s unnecessary conclusion that Congress’s 180-day enforcement deadline doesn’t matter. The conclusion is consistent with...more

2/12/2015 - Chevron Deference Dodd-Frank Enforcement SEC

FINRA Proposes Higher Arbitration Cancellation Fees

FINRA Dispute Resolution filed with the SEC a proposed change to Code of Arbitration Rules 12214 and 12601 (and industry Rules 13214 and 13601) to increase late cancellation fees from $100 to $600 per arbitrator and expand...more

2/11/2015 - Arbitration FINRA Proposed Amendments SEC

S&P’s $1.4BN Settlement with DOJ and State AGs on RMBS/CDO Ratings

On February 3, the Department of Justice and 19 State Attorneys General announced their $1.375 Billion settlement of DOJ’s FIRREA suit and related State AG actions against Standard & Poor’s and its parent McGraw-Hill...more

2/9/2015 - Attorney Generals Collateralized Debt Obligations DOJ Enforcement Actions FIRREA Rating Agencies RMBS S&P SEC Settlement

SEC and FINRA Issue Cyber Security “Alert”

The SEC and FINRA each issued February 3 cyber security “alerts” summarizing last year’s sweep exams and pointing out the obvious. In two parts, the SEC’s press-release covered the results of the Commission’s 2013-2014 sweep...more

2/6/2015

SEC Dismisses Administrative Insider-Trading Suit Against Peixoto

On January 29, the Commission dismissed its insider-trading suit against Canadian analyst Jordan Peixoto in connection with his purchase of puts on the stock of Herbalife in advance of a negative hedge fund presentation on...more

2/4/2015 - Dismissals Enforcement Actions Hedge Funds Herballife Insider Trading SEC

SEC & AGs Fine & Suspended S&P for MBS Rating Violations

The SEC and the Attorneys General of New York and Massachusetts this week fined Standard & Poor’s almost $77 million, suspended S&P from conduit-fusion CMBS ratings work for a year and imposed other undertakings, for...more

1/27/2015 - Administrative Fines Attorney Generals CMBS RMBS S&P SEC

SEC Announces 2015 Exam Priorities

The SEC’s Office of Compliance Inspections and Examinations (“OCIE”) released its 2015 Exam Priorities January 13. Director Andrew Bowden’s annual list details OCIE’s subject of focus for the coming year....more

1/16/2015 - Industry Examinations Investment Adviser Municipal Advisers OCIE SEC

FINRA Panel Precludes Evidence & Awards Punitives as Discovery Sanction

An all-public panel of FINRA arbitrators entered a preclusion order and awarded $750,000 in punitive damages for Respondents’ failure to participate in discovery and disregard of pre-hearing filing requirements....more

1/14/2015 - Arbitration Discovery FINRA Punitive Damages Sanctions

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